STATE OF FLORIDA : DEPARTMENT OF ENVIRONMENTAL PROTECTION HOTT AWE S4 Bag Suis Kee CJC PROPERTIES, LTD., 4 ) yoo. Petitioner, ) , ) OGC CASENO. 03-1402 vs. ) 06-0926 . ) DOAH CASE NO. 06-2006 DEPARTMENT OF ENVIRONMENTAL ) . 06-2007 PROTECTION, ) : ) Respondent. ) ) ‘FINAL ORDER On July 9, 2008, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings (“DOAH”) submitted to the Department of Environmental Protection (‘Department’) his Recommended Order (“RO”) in this administrative proceeding. A copy of the RO is attached hereto as Exhibit A. The RO indicates that copies were served to counsel for the Petitioner, CJC Properties, Ltd. (“CJC”), and to the Respondent DEP. No Exceptions were filed by any party. The matter is now before me for final agency action. BACKGROUND CJC is the current owner of property located at 5691 U.S. Highway 27 North, in Tallahassee. Prior to CJC’s acquisition of the property, the property-was owned by Carolyn J. Chapman, John W. Chapman, Jane Chapman Latina, and Carolyn Chapman Landrum (“the Chapmans’”). The property was leased to various entities and operated as a gas station (‘the facility’). The tanks and dispensers at the facility remained in service until November 1995. In 1996, the Chapmans applied to participate in the Florida Petroleum Liability and Restoration Insurance Program (“FPLRIP”) for a petroleum discharge that was reported in 1995. By order dated January 26, 1996, the Department determined that the discharge was eligible for state-funded remediation assistance under FPLRIP. In September 2003, CJC, the new owner of the facility, sought funding under the Petroleum Contamination Participation Program (“PCPP”) for the discharge reported in 1995. In October 2003, the Department denied CJC eligibility for PCPP funding, stating that a cleanup funded under FPLRIP could not also be funded under PCPP. ) In September 2005, CJC submitted an affidavit of its consultant in support of a claim that more than one discharge had occurred at the facility and sought PCPP funding for a second discharge. On March 30, 2006, the Department issued an Amended Order of Ineligibility, again stating that a discharge funded under FPLRIP could not be funded under PCPP, and adding a-second ground of ineligibility that the reporting requirements had not been met. CJC filed a petition challenging the Department's determination, which was referred to DOAH and assigned DOAH case number 06-2006. CJC also requested FPLRIP funding for a second petroleum discharge at the facility. On March 23, 2006, the Department denied eligibility, stating that the evidence presented by CJC was insufficient to show that a second discharge had occurred. CJC filed a petition for hearing to challenge the order, and the petition was referred to DOAH and assigned DOAH case number 06-2007. The two cases were consolidated for hearing. The final hearing was held on May 29, 2008, in Tallahassee. The ALJ subsequently issued his RO on July 9, 2008. RECOMMENDED ORDER In the RO the ALJ ultimately recommended that the Department enter a final order determining that CJC was ineligible to participate in the PCPP for the discharge reported on December 1, 1995, and that CJC did not demonstrate eligibility to participate in the PCPP or the FPLRIP for any other discharges. The ALJ found that on November 30, 1995, the Chapmans employed a contractor to remove the five storage tanks. During the tank removal, a consultant performed an assessment to determine whether the facility was contaminated with petroleum or petroleum products. Based on the findings during the tank removal a Discharge Reporting Form was filed on December 1, 1995, stating that there had been a discharge of unleaded gasoline at the facility. (RO Findings of Fact 4 — 15). When the Chapmans applied in 1996 to participate in FPLRIP based on the discharge, the Department determined that the reported discharge was eligible for state-funded remediation assistance under FPLRIP. (RO Finding of Fact 16). The ALJ found that in January 2003, the Department notified CJC that the $300,000 FPLRIP funding cap ‘would soon be reached. In March 2003, CJC signed a Funding Cap Transition Agreement, acknowledging that “[a]t no time will the DEP be obligated to pay for cleanup of this discharge any amount that exceeds the funding cap.” CJC further acknowledged that it “is responsible for completing the remediation of the discharge in accordance with Chapter 62-770, F.A.C.” (RO Finding of Fact 28). ) Then in September 2003, CJC sought funding under PCPP for the discharge that was reported in 1995. The ALJ found that the Department has never granted PCPP eligibility for the cleanup of a discharge previously being funded under FPLRIP. This ‘was based on the Department's interpretation of Section 376.307 1(13)(g), Florida Statutes, that contamination already covered under the FPLRIP is excluded from participation in the PCPP. The ALJ concluded that the Department’s interpretation of the exclusion is consistent with the plain meaning of the statute and the intent of the FPLRIP to impose financial responsibility on the facility owner for cleanup costs beyond the funding cap.’ (RO Conclusions of Law 54 and 56). The ALJ found that in 2005, CJC hired an expert to review the previous assessments conducted at the facility. The expert opined that at least two discharges had occurred at the site, including a discharge of leaded gasoline. (RO Finding of Fact 34). The ALJ found that the data upon which CJC relied in claiming eligibility for a second discharge (under FPLRIP or PCPP) are, “at best, incomplete and ambiguous.” (RO Finding of Fact 46). Thus, the ALJ found that CJC failed to prove by a preponderance of the evidence that a discharge of leaded gasoline occurred, or that there was another eligible discharge at the facility. (RO Finding of Fact 46, Conclusions of Law 58, 61, 62). . CONCLUSION The case law of Florida holds that parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of ALJs by filing exceptions to DOAH recommended orders. See Couch _ v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no * During the 2008 Legislative Session, House Bill 961 was adopted. The bill increases the funding cap to $400,000, and became effective July 1, 2008. The Department does not dispute that the new funding cap applies to the discharge reported on December 1, 1995. See §3, ch. 2008-127, Laws of Florida. 4 exceptions to certain findings of fact the party “has thereby expressed its agreement with, or at least waived any objection to, those findings of fact.” Environmental Coalition of Florida, Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1* DCA 1991). The ALJ's RO found that CJC was ineligible to participate in the PCPP for the discharge reported on December 1, 1995, and that CJC did not demonstrate eligibility to participate in the PCPP or the FPLRIP for any other discharges. CJC did not file any Exceptions to the ALJ’s recommendation. Having considered the applicable law and standards of review in light of the findings and conclusions set forth in the RO, and being otherwise duly advised, it is ORDERED that: A. The Recommended Order (Exhibit A) is adopted in its entirety and incorporated herein by reference. B. CJC is ineligible to participate in the Petroleum Cleanup Participation Program for the discharge reported on December 1, 1995, or for any other discharges. (DOAH Case No. 06-2006). Cc. CJC did not demonstrate eligibility to participate in the Florida Petroleum Liability and Restoration Insurance Program for any other discharges (DOAH Case No. 06-2007). Any party to this proceeding has the right to seek judicial review of this Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department. DONE AND ORDERED this bNaay of October, 2008, in Tallahassee, Florida. STATE OF FLORIDA DEPARTMENT _OF ENVIRONMENTAL PROTECTION Secretary Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 FILED ON THIS DATE PURSUANT TO § 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED. b(rardatl jolujog CLERK DATE . CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to: : Robert D. Fingar, Esquire L. Lee Williams, Jr., Esquire Gramling & Fingar, LLP Williams, Gautier, Gwynn & DeLoach, P.A. 1607 Village Square Boulevard 2010 Delta Boulevard Suite 1 Post Office Box 4128 Tallahassee, FL 32309 Tallahassee, FL 32315-4128 Claudia Liado, Clerk and Bram D. E. Canter, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL. 32399-1550 and by hand delivery to: Jack Chisolm, Esquire Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 this Ase of October, 2008. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION —=_ > FRANCINE M. FFOLKES Administrative Law Counsel 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 Telephone 850/245-2242

Docket for Case No: 06-002006

Orders for Case No: 06-002006